Opinion
7 Div. 782.
April 7, 1931.
Appeal from Circuit Court, St. Clair County; Woodson J. Martin, Judge.
Henry Martin was convicted of using obscene language in the presence of a woman, and he appeals.
Affirmed.
Miller Miller, of Gadsden, for appellant.
Where the language was not used in the presence of a woman, it must be shown that she heard it. McVay v. State, 100 Ala. 110, 14 So. 862. It was error to allow evidence that the defendant was drunk or drinking. McGee v. State, ante, p. 124, 131 So. 248.
Thos. E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty. Gen., for the State.
The fact that defendant was drinking at the time and place of the commission of the offense charged was admissible as of the res gestæ. Jones v. State, 22 Ala. App. 141, 113 So. 478; Vintson v. State, 22 Ala. App. 338, 115 So. 695.
Appellant was convicted of the offense of using abusive, insulting, or obscene language in the presence or within the hearing of a woman, and fined $50. Code 1923, § 3193.
The prosecution was begun in the county court of St. Clair county, and carried from there, by appeal, to the circuit court, where a trial before a jury was had.
There was no request by appellant for the general affirmative charge, in his favor. If there had been, we would hold that there was at least some evidence of his guilt, as claimed, and that hence said charge would have been properly refused.
There was no motion for a new trial. Therefore the weight and sufficiency of the evidence is not subject to consideration by us.
Testimony as to all the surrounding circumstances, the condition of appellant as to being drunk, or drinking, etc., was admissible as a part of the res gestæ.
We discover no prejudicial error, and the judgment of conviction is affirmed.
Affirmed.